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American Bar Association

ABA Section of Business Law


The employer as monitor

Keeping an eye on Net use and e-mails can prevent litigation

By SINDY J. POLICY

S o here's the scene: A woman employee walks past a male colleague's office and sees a suggestive screen saver on his computer terminal. She sues the company for not doing anything about such sexual harassment in the workplace. The company seeks your legal advice.

In today's world of exploding employment litigation, employers are seeing a tremendous increase in lawsuits alleging harassment, discrimination and the like based on evidence from e-mail and Internet use in the workplace. The legal landscape has shifted to make discrimination and harassment cases more viable and the technological advances used by nearly every employer have added fuel to the fire.

This reality makes it essential for employers to be vigilant about Internet-based employee conduct, both to prevent discrimination, harassment and other wrongful workplace conduct from occurring through this medium and also to properly address such conduct when it does occur, to avoid, or at the very least minimize, legal liability.

E-mails and Internet sites are increasingly being offered into evidence in discrimination and harassment suits. Employees have cited improper images that were downloaded to computers in the workplace and used as background wallpaper or screen savers as proof of a hostile work environment. Plaintiffs alleging racial or sexual discrimination have complained of offensive jokes or comments that have circulated by e-mail. For many employers, the price of e-mail and Internet harassment or discrimination is steep. Liability can easily reach into the millions of dollars.

What's an employer to do? Monitoring of employee Internet and e-mail use can be a critical tool in avoiding liability stemming from the rising use of technology in the workplace.

According to recent Supreme Court cases (modifying the world of sexual-harassment law), an employer's ability to respond to inappropriate or harassing use of the Internet and e-mail is crucial.

In Burlington Industries Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), the court set forth a new standard for employer liability for sexual harassment by supervisors. In cases where an employee suffered a "tangible employment action" as a result of harassment, the employer will be automatically liable (regardless of whether or not it was aware of the harassment). In cases of harassment where there was no tangible employment action, the employer will be liable unless it can prove an affirmative defense.

The affirmative defense consists of proving that (1) the employer "exercised reasonable care to prevent and correct promptly any sexually harassing behavior," and (2) the employee "unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Courts agree that for an employer to successfully use the defense, it needs to be vigilant to maintain a harassment-free workplace.

While the issue has not yet been litigated, commentators have speculated that an anti-harassment policy barring Internet and e-mail use for the harassment of others may be sufficient to satisfy the first prong of the Ellerth/Faragher defense. If promulgating such a policy is sufficient, Internet monitoring would certainly satisfy this element, as it demonstrates a proactive effort by employers to prevent harassment in the workplace.

As for the second prong of the Ellerth/Faragher defense, courts have held that a plaintiff's failure to report harassing activity is relevant and, if avenues to report and remedy harassing behavior are available, may establish that an employee acted unreasonably. Accordingly, an employer may be able to successfully defend against litigation arising from an unreported case of harassment by showing that it undertook Internet monitoring in an effort to maintain a harassment-free workplace.

The utility of monitoring is not limited to enabling employers to use the Supreme Court's affirmative defense in sexual-harassment cases where no tangible employment action has occurred. It can be effective in avoiding litigation altogether.

Some have concluded that the mere fact of using a monitoring device and communicating its use to employees can have a dramatic effect in lessening inappropriate Web-based activity. One way it does so is by reinforcing an employer's anti-harassment and anti-discrimination policies and by keeping them on the forefront of employees' minds.

To the extent that harassing and discriminatory conduct continues to occur through the Internet and e-mail, a monitoring device empowers an employer to react swiftly and appropriately to such improper conduct (and to deter other employees from engaging in it also). Employers would be wise to treat even unreported instances of potentially harassing or discriminatory Net use as they would more traditional forms and take measures to eliminate the misconduct from the workplace.

In the event that a monitoring system fails and harassing messages slip through the cracks, the Ellerth/Faragher affirmative defense is likely still available to employers. They may use the existence of a monitoring device as evidence that they actively monitored employees in an effort to prevent such harassment and argue that the alleged victim's failure to report harassment was unreasonable.

Although both Ellerth and Faragher involved claims of sexual harassment and discrimination, it is likely that the affirmative defense the court promulgated will be available to employers in other types of discrimination lawsuits brought under Title VII. In fact, courts have typically applied the same standards when assessing all kinds of claims alleging workplace harassment or discrimination, whether they are based on sex, race, national origin, religion, disability or otherwise. In short, employer monitoring will provide an effective shield from liability arising from a wide range of employee claims of discrimination or harassment.

In addition to limiting employer liability for harassment and discrimination claims, monitoring can be an effective tool in detecting and preventing workplace violence and threats of such violence. The number of violent acts and threats in the workplace is on the rise (or is at least attracting more media attention) and is resulting in more claims of employer negligence.

Courts are seeing more negligent retention, hiring or supervision claims arising out of threats in the workplace, which are increasingly communicated by the Net and e-mail. By monitoring employee activity, employers will be better equipped to detect workplace threats and to defuse such situations and to ensure the safety of their workforce.

Some employers have considered blocking Internet access as opposed to monitoring. Blocking Net access has a negative effect on employee morale, however, as employees are likely to feel they are being treated as children. Blocking may also inadvertently prevent employees from checking legitimate, work-related Web sites.

Monitoring, on the other hand, leaves employees free to pursue legitimate Internet searches without feeling as though the employer is "parenting" them. A Colorado start-up company, eSniff.com, recently introduced a product that does just that. Its device monitors all network traffic and flags activity that could cause problems. It defines categories, then analyzes the content and context of all computer network activity to determine if any communication falls into a category that an employer has established as inappropriate.

Those categories may contain any topics, but most often they include such things as conflict, pornography, racism, day trading, shopping, confidential material or other topics the employer deems inappropriate for the workplace. This method of monitoring presents a sensible solution to managing employees' activity on the Internet.

One concern often raised with regard to Internet monitoring is the potential for invasion-of-privacy claims by employees. Potential lawsuits could allege a common law tort claim for invasion of privacy, or a statutory cause of action created by federal privacy statutes. However, courts have balanced the interests between employee privacy rights and employer rights to monitor Internet and e-mail use and held in favor of the employer's right to control its workplace.

To state a tort claim for invasion of privacy, a plaintiff must prove that he or she had a reasonable expectation of privacy. In Smyth v. Pillsbury Co., 914 F.Supp. 97 (E.D. Pa. 1996), a leading case on privacy issues relating to the Internet, the employer defeated the employee's invasion-of-privacy claim. The plaintiff employee was terminated based on "inappropriate and unprofessional comments" made to his supervisor over the employer's e-mail system.

Despite the fact that the employer had assured its employees that all e-mail communications would be confidential and that they would not be intercepted and used as grounds for termination or reprimand, the court found no reasonable expectation of privacy. It reasoned that once the plaintiff communicated the comments to a second person (his supervisor) by an e-mail system used by the entire company, any expectation of privacy was lost.

Employers should be sure to use e-mail- and Internet-use policies, stating explicitly that there is no expectation of privacy in them. Employers should also advise employees that they monitor employee activity via e-mail and the Internet, to ensure compliance with company policy. These safeguards go far beyond those accepted by the Smyth court and should provide employers with ample ability to monitor employees without running afoul of privacy rights.

In addition to common law tort actions, employees may bring claims for violation of privacy under the Electronic Communications Privacy Act of 1986. The ECPA amended Title III of the 1968 Omnibus Crime Control and Safe Streets Act to bring its prohibitions on eavesdropping and wiretapping in line with technological advances. It prohibits both the interception of electronic communications while in transit and the unauthorized access of stored communications.

However, several statutory exceptions apply to employer Internet monitoring, to protect employers from liability under the ECPA.

To avoid this issue entirely, express or implied consent of one of the parties to a communication is a defense. In the case of employer monitoring, the employer obviously consents. Also, an employer may claim a business-use exception if its monitoring is "in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service . . . ." Monitoring Internet and e-mail use to ensure compliance with company policies, namely anti-harassment and discrimination policies, constitutes a "business use" within the statutory definition.

Finally, an employer whose employees use a local-area network for Internet access may invoke the provider exception, under which a "person or entity providing a wire or electronic communications service" may authorize access to stored communications on its system.

It is essential for employers to maintain and distribute a broad Internet/e-mail policy, explaining that the company may monitor electronic communications. The policy should explicitly state that the employer reserves the right to monitor usage, including retrieving and reading e-mail messages and files as well as tracing Internet activity.

Employees should be forewarned that their use of the company's computers is not confidential and even though they may be issued a private password to log on, they have no reasonable expectation of privacy. They should also be reminded that company computers, files, software and Internet access belong to the company.

The policy should expressly prohibit use of the system in ways that are disruptive, demeaning or offensive, including but not limited to sexually explicit, racially discriminatory and religious messages, or messages that are otherwise inconsistent with the company's "equal employment opportunity" and "sexual and other unlawful harassment" policies. Employees should be instructed not to go into Web sites that are pornographic or contain offensive material. Finally, employees should be warned that violation of the Internet/e-mail policy may result in disciplinary action, up to and including termination. This provides employers with broad discretion in responding to Internet or e-mail abuses.

As employee Internet use has increased exponentially in the last few years, new problems have surfaced for employers: decreased productivity, communication of proprietary information and the exchange of inappropriate materials, such as sexually explicit or racially demeaning jokes, banter or Web sites. Because employers can face vast liability arising from such misuse, it is imperative that they are aware of what is occurring in their workplace — behind closed computer screens, so to speak.

In sum, employer monitoring of Internet and e-mail use is an excellent liability-prevention tool, as it allows employers to keep abreast of what is occurring in their workplaces.

 

Policy is an associate at Thompson, Hine & Flory LLP, in Cleveland. Her e-mail is sindy.policy@thompsonhine.com

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